Newbrough v. Walker

• Citation: 49 Va. 16
• Parties: NEWBROUGH v. WALKER.
• Decision Date: 19 July 1851
• Court: Virginia Supreme Court

49 Va. 16

NEWBROUGH v. WALKER.

Supreme Court of Appeals of Virginia.

July 19, 1851

(Absent Cabell, P.)

In an action of covenant for the failure to deliver to the plaintiff possession of a mill which he had rented of the defendant, the plaintiff not having sustained any special damage, he is entitled to recover only the difference between the rent contracted to be paid, and a fair rent for the property at the time when it should have been delivered. A conjectural estimate of the profits which might have been made, is no legitimate basis upon which to fix the damages.

This was an action of covenant brought in August 1846, in the Circuit court of Frederick county, by Robert S. Walker against Joshua Newbrough. The declaration set out a covenant by which Newbrough agreed to rent to Walker his mill in the county of Frederick, for two years from the first of July 1846, for the rent of 300 dollars a year, payable every three months. And the plaintiff averred that the defendant had broken his covenant in this, that although the plaintiff was ready and willing and offered to comply with the same on his part, and had requested the defendant to permit him to take possession as tenant as aforesaid of the said Newbrough's mill in the said covenant mentioned, viz: on the first day of July, at the county aforesaid, the defendant positively refused; and forbid said plaintiff from so taking possession. And that said defendant, after the making of said agreement and before giving possession of the premises, or any part thereof, to the plaintiff, viz: on the day of July 1846 rented, demised and leased the said premises to a certain Benjamin Ford, and put said Ford in possession of the same whereby the plaintiff was prevented from entering upon and enjoying the said leased premises. Wherefore the plaintiff avers he sustained damage to the amount of 500 dollars.

The defendant appeared and demurred to the declation; but the demurrer was overruled. He then filed two pleas, one a general, and the other a special plea of non est factum; on which the plaintiff took issue. Upon the trial the jury found a verdict for the plaintiff for 250 dollars damages; whereupon, the defendant moved the Court for a new trial, on the ground, first, that the verdict was contrary to the evidence; and second, that the damages were excessive. But the Court overruled the motion, and rendered a judgment upon the verdict; and the defendant excepted. The material facts of the case are as follows.

The plaintiff was a young man with a family dependent on his labour. He had been employed previous to the first of July 1846, by a Mr. Hollingsworth, as his head miller; and his time with him expired on the 13th of July. The covenant was executed some days before the 1st of July. Whilst the scrivener was preparing it the plaintiff proposed to give security for the payment of the rent, but the defendant declined it. After it was signed by the parties the plaintiff again proposed to give security for the payment of the rent, to which the defendant then assented, and a clause was added to the covenant to be signed by the sureties, by which they bound themselves for the true performance of the contract by Walker; and he took the agreement to have it signed by the sureties; and when so signed it was to be left with the person who had prepared it for safe keeping; and it was signed and delivered accordingly before the 1st of July.

It appears that the plaintiff went to take possession of the mill on the 1st of...